United States Court of Appeals

for the Fifth Circuit ____________

No. 22-60236

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Carrnell Denman, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:21-CR-10-1 

______________________________

Before Jolly, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

Carrnell Denman pleaded guilty, pursuant to a plea agreement, to one 

count of possession with intent to distribute 50 grams or more of 

methamphetamine. As part of his plea agreement, Denman waived his right 

to appeal and collateral review, except that he reserved the right to bring 

claims of ineffective assistance of counsel. The district court denied his 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 19, 2023

Lyle W. Cayce

Clerk

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No. 22-60236

2

motion to proceed in forma pauperis (IFP) and certified that the appeal was 

not taken in good faith.

Denman argues that his appeal waiver is not enforceable because it is 

unconstitutional, basing his argument on a concurring opinion: United States 

v. Melancon, 972 F.2d 566, 570-80 (5th Cir. 1992) (Parker, J., concurring). He 

contends that the district court erred in calculating his advisory guidelines 

range. He additionally moves this court for authorization to proceed IFP. 

The Government has filed a motion to dismiss based on the appeal waiver, 

or, in the alternative, for summary affirmance. In opposing the motion to 

dismiss, Denman argues that the waiver is unenforceable because of 

ineffective assistance of counsel.

We will grant authorization to proceed IFP on appeal if the litigant 

demonstrates that he is a pauper and that his appeal is taken in good faith, 

i.e., that a nonfrivolous issue exists for appeal. § 1915(a); Jackson v. Dall.

Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Because his arguments on 

appeal fall within the scope of the appeal waiver, whether Denman has 

presented a nonfrivolous issue for appeal depends on the enforceability of his 

appeal waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). 

We have held that appellate rights may be waived as part of a valid plea 

agreement. United States v. Keele, 755 F.3d 752, 756 (5th Cir. 2014); see also 

Bond, 414 F.3d at 544; Melancon, 972 F.2d at 567 (majority opinion). Because 

Denman’s appeal was knowing and voluntary and applies to the 

circumstances at hand, it is enforceable and forecloses his argument 

regarding the guidelines calculation. United States v. Higgins, 739 F.3d 733, 

736 (5th Cir. 2014); accord Bond, 414 F.3d at 544.

In his plea agreement, Denman did reserve the right to bring a claim 

of ineffective assistance of counsel. The record, however, is not sufficiently 

developed to allow the court to make a fair evaluation of the claims of 

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ineffective assistance of counsel raised in response to the Government’s 

motion to dismiss. We decline to consider the claims without prejudice to 

collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).

For these reasons, the Government’s motion to dismiss is

GRANTED, and this appeal is DISMISSED. See United States v. Story, 

439 F.3d 226, 230 n.5 (5th Cir. 2006). The Government’s alternative motion 

for summary affirmance and Denman’s IFP motion are DENIED.

Case: 22-60236 Document: 00516825890 Page: 3 Date Filed: 07/19/2023